Johnson v. State, No. 30831

• Docket Nº: No. 30831
• Citation: 14 Ind.Dec. 39, 235 N.E.2d 688, 250 Ind. 283
• Case Date: April 18, 1968
• Court: Supreme Court of Indiana

Page 688

235 N.E.2d 688 250 Ind. 283 Johnnie Will JOHNSON, Appellant,
v.
STATE of Indiana, Appellee. No. 30831. Supreme Court of Indiana. April 18, 1968.

[250 Ind. 284]

Page 689

Nick J. Thiros, Sheldon H. Cohan, Gary, for appellant.

John J. Dillon, Atty. Gen., Ronald S. Timmons, Richard V. Bennett, Deputy Attys. Gen., for appellee.

JACKSON, Judge.

Appellant was convicted by the Porter Circuit Court of first degree murder and sentenced to the Indiana State Prison for life. From such conviction he appeals.

Appellant was charged by an indictment filed in the Lake Criminal Court on May 11, 1961. The indictment, omitting formal parts, reads as follows:

'The Grand Jurors of Lake County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Lake, in the name and by the authority of the State of Indiana, on their oaths present that one OTHELLO L. DIXON, JOHNNIE WILL JOHNSON, J. C. REED & McCLENTON GEE, of said County, on the 17th day of February, A.D., 1961, at said County and State aforesaid, did then and there unlawfully and feloniously kill and murder one JULIA SUPERCZYNSKI while they, the said OTHELLO L. DIXON, JOHNNIE WILL JOHNSON, J. C. REED & McCLENTON GEE, were then and there engaged in unlawfully, feloniously and burglariously attempting to break and enter into the apartment of one FRANK MARTINEZ, a place of human habitation, with intent to then and there steal, take and carry away the personal property of the said FRANK MARTINEZ; and that the said OTHELLO L. DIXON, JOHNNIE WILL JOHNSON, J. C. REED & McCLENTON GEE, at the time of and while engaged in the attempted perpetration of said burglary, as aforesaid, did then and there unlawfully and feloniously kill and murder the said [250 Ind. 285] JULIA SUPERCZYNSKI by then and there unlawfully and feloniously binding and gagging the said JULIA SUPERCZYNSKI with cord and rope and forcing into the throat of the said JULIA SUPERCZYNSKI certain rags and cloth materials, then and there and thereby causing the said JULIA SUPERCZYNSKI to choke, suffocate and strangle, from which choking, suffocation and strangulation the said JULIA SUPERCZYNSKI then and there died, then and there being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

On June 12, 1961 defendants Reed and Gee entered pleas of not guilty. On August 8, 1961, defendant Dixon entered a plea of not guilty. Appellant entered a plea of not guilty on August 16, 1961. On October 16, 1961, Dixon withdrew his plea of not guilty, pleaded guilty and was given a life sentence. Thereafter the charge against Gee was dismissed upon a motion by the State.

Page 690

On June 13, 1962, appellant filed his Motion to Suppress and Reject Evidence, seeking to suppress the written statement purported to be a confession he had signed. The Porter Circuit Court overruled the motion to suppress.

The cause was submitted to the court without the intervention of a jury. At the trial the court overruled appellant's objection to the admission of his purported confession and admitted the purported confession into evidence.

Appellant's Motion for a New Trial was overruled by the Special Judge on June 11, 1965. The Motion for a New Trial, omitting formal parts, reads as follows:

'Comes now the Defendant in the above entitled cause, and moves the Court for a new trial thereof upon the following grounds, and for the following reasons:

1. Error of law occurring at the trial, in this, to-wit: The Court admitted into evidence Defendant's statement taken by police officers of the City of Gary on March 4, 1961, over Defendant's objection that said statement had been obtained from Defendant after Defendant had been submitted to extensive periods of questioning by said officers of the Gary Police Department; that Defendant had been [250 Ind. 286] beaten by said officers of the City of Gary prior to Defendant signing said statement; that Defendant was not advised of his constitutional rights and rights to counsel prior to being requested to affix his signature to said statement; that Defendant was not given an opportunity to examine and read said statement prior to signing it; that Defendant had requested counsel and had been refused permission to consult with counsel prior to signing said statement; that Defendant had been refused permission to consult with members of his family although on two occasions Defendant's brother, James Johnson, had requested and was denied permission to consult with Defendant, on the first such occasion Defendant's brother had attempted to see Defendant the Defendant had not signed said statement and had specifically requested permission to consult with members of his family regarding his arrest and confinement.

2. Error of law occurring at the trial, in this, to-wit: That the Court admitted into evidence, during the presentation of the State's case, State's Exhibits #11 and #12, alleged to be pictures taken of the apartment of the deceased, Julia Superczynski, over Defendant's objection, upon such Exhibits being offered by the State, that the introduction into evidence of these photographs were not material to the charges made against the Defendant since Defendant had been charged by the Indictment with the murder of Julia Superczynski while attempting to break and enter into the apartment of Frank Martinez with intent to take and carry away the personal property of the said Frank Martinez and not the burglary of the apartment of Julia Superczynski and that the admission into evidence of said exhibits are a variance with what the State has the burden of proving and what it was attempting to prove by the introduction of such evidence.

The Court overruled Defendant's objection and said Exhibits were admitted into evidence.

3. Error of law occurring at the trial in this, to-wit: Upon the close of the State's case, and after the State had rested, Defendant moved for a finding of not guilty on the grounds that the State had failed to prove the allegation set forth in the indictment and in particular had failed to prove the felonious intent alleged in the indictment that Defendant had intended to take, carry away and steal the personal property of Frank Martinez in which motion it was shown to the Court that no evidence had been introduced to show Defendant had intended to burglarize the apartment of the

Page 691

said Frank Martinez and that the evidence clearly established[250 Ind. 287] that the Defendant and his co-defendants intended to burglarize the apartment of or rob the deceased, Julia Superczynski, and that proof of any other intent than that specifically alleged in the indictment was a fatal variance in the State's case and further was equivalent to a failure on the part of the State to prove each and every essential allegation in the indictment.

The Court having heard arguments from Defendant and the State overruled Defendant's motion and advised Defendant to proceed.

4. Error of law occurring at the trial, in this, to-wit: That the Court overruled Defendant's motion after resting without presenting evidence for a finding of not guilty on essentially the same grounds as set...